Tavour Inc.

Terms of Use

PLEASE READ THESE TERMS OF USE CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.

Last Modified: November 4th, 2019

I.
Introduction
A.
Service: Tavour Inc. and its suppliers and affiliates (collectively, “Tavour”, “we”, or “us”) provides the website and online service available at Tavour.com (“Site”), a mobile application (“App”), and all related software, products, services, communications, and information (collectively, “Service”) to all visitors, users, and others who access the Service (“Users” or “you”) subject to the terms and conditions of use (these “Terms of Use” or “Agreement”). By accessing or using the Service, or by clicking a button or checking a box marked “Sign Up” (or something similar), you signify that you have read, understood, and agree to be bound by this Agreement and to the collection and use of your information as set forth in our Privacy Policy [https://www.tavour.com/privacy-policy], whether or not you are a registered user of our Service. Please read these Terms of Use carefully before using the Service. BY USING THE SERVICE IN ANY WAY, YOU EXPLICITLY AGREE TO COMPLY WITH AND BE BOUND BY THESE TERMS OF USE AND ALL TERMS, POLICIES, AND GUIDELINES INCORPORATED BY REFERENCE HEREIN WHETHER OR NOT YOU ARE A REGISTERED USER OF THE SERVICE. If you do not agree to all provisions of this Agreement, do not use the Service. By using the Service following any modifications to the Terms of Use, you agree to be bound by any such modifications.
B.
Changes to the Terms of Use and/or Service: Tavour may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Tavour in our sole discretion. Tavour is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We reserve the right, in our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without prior notice. When we change the Agreement in a material manner, we will update the “last modified” date at the top of this page and notify you that material changes have been made to the Agreement. You acknowledge and agree that the form and nature of these Terms of Use may change at any time without prior notice to you and acknowledge and agree that you hereby accept the new terms so long as they are updated here. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. We may, without prior notice, change the Service; stop providing the Service or features of the Service to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
C.
THESE TERMS OF USE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
II.
Acceptance of Terms
A.
Eligibility: This is a contract between you and Tavour. You must read and agree to these Terms of Use before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations. Any use of or access to the Service by anyone under 21 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by us.
B.
No Waiver: Our failure to enforce any provisions of the Agreement or respond to a breach by you or other parties shall not in any way waive our right to enforce subsequently any terms or conditions of the Agreement or to act with respect to similar breaches. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred.
C.
Sole Responsibility: You agree that you are solely responsible for any breach of your obligations under the Terms of Use and for the consequences of such breach, including any loss or damage Tavour may suffer. You also agree that Tavour has no responsibility to you or to any third party for your breach of the Terms of Use and for the consequences of such breach.
D.
Consent to Electronic Communications: By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
III.
Users
A.
Age Restriction: The Service is intended only for the use and enjoyment of persons who are 21 years of age or older and legally reside in the United States. By registering on the Service or downloading the App, you certify that you are at least 21 years of age and legally reside in the United States. Persons under 21 years of age are prohibited from using the Service in any way.
B.
ASSUMPTION OF RISK: YOU ASSUME ALL RISK AND LIABILITY FOR THE USE OF ANY PRODUCTS, WHETHER IN TERMS OF HEALTH AND SAFETY OR GENERAL EFFECTIVENESS. You are solely responsible for your interactions with other Users. Tavour reserves the right, but has no obligation, to monitor disputes between you and other Users.
C.
Personal Use: Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Tavour reserves all rights not expressly granted herein in the Service. We may terminate this license at any time for any reason or no reason. We do not grant you any express or implied rights to access or use the Service for any other purpose. Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You agree to have no more than one User Account and to not sell, trade, or transfer that User Account to any other person. You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers, and symbols) with your User Account. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for any losses caused by any unauthorized use of your User Account. You may control your User profile and how you interact with the Service by changing the settings on your App settings page. By providing us your email address, you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences on your App settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. You agree to comply with these Terms of Use and all applicable law or regulations of the jurisdiction in which you reside and may be subject. You agree that you will not purchase, deliver, or pick up products for, or provide any information of, any individual under the age of 21. You agree that you will not interfere with or disrupt the Service and that you will not access the Service by any other means other than through the interface provided by Tavour.
D.
Service Rules: You agree not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Service in any medium, including, without limitation, by any automated or non-automated “scraping”; (b) using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional online web browser (except that we grant the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Service; (g) collecting or harvesting any personally identifiable information, including User Account names, from the Service; (h) using the Service for any commercial solicitation purposes; (i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (j) interfering with the proper working of the Service; (k) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (l) bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
E.
Registration Information: In order to access certain products or services, you may be required to provide information about yourself as part of the registration process or as part of your continued use of the Service. You represent and warrant that any registration information you give to us is and will remain accurate, correct, and up to date.
F.
Right to Terminate: Tavour or you may terminate your User Account at any time, with or without warning and with or without cause. Even after your User Account is terminated, this agreement will remain in effect. You may terminate your User Account at any time, for any reason, by contacting us by email at support@tavour.com. Requests for User Account termination may also be made in writing to:
Tavour, Inc - Account Termination
1904 3rd Avenue Suite 725
Seattle, WA 98101
United States of America
IV.
Privacy and Security
A.
Privacy and Security: We care about the privacy of our Users. You understand that by using the Service you consent to the collection, use, and disclosure of your personally identifiable information and aggregate and/or anonymized data as set forth in our Privacy Policy [https://www.tavour.com/privacy-policy], and to have your personally identifiable information collected, used, transferred to, and processed in the United States. We use commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personally identifiable information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personally identifiable information for improper purposes. You acknowledge that you provide your personally identifiable information at your own risk.
B.
Authorized User Account: By using the Service, you represent and warrant that you are authorized to use the Service under the User Account registered. You acknowledge and agree that you are responsible for maintaining the accuracy, confidentiality, and privacy of your User Account information. You agree that we are not liable for any damages or losses caused by a third party’s use of your User Account without your permission. However, you agree to be solely responsible and liable for any and all activities that occur under your User Account. If you become aware of any unauthorized use of your User Account information, you agree to notify us immediately at support@tavour.com.
C.
Notifications: By providing your contact information, you acknowledge that you may receive push notifications on your mobile device (“Push Notifications”), as well as via email or other types of messages. You acknowledge that, when you use the Service, your wireless service provider may charge you fees for data, text messaging, and/or other wireless or Internet access, including in connection with all notifications and messages. You have control over App Push Notifications settings, and may opt in or out of these on your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages).
V.
Transactions, Purchasing, Shipping & Delivery
A.
Purchase: You may initiate a product order by submitting an order (“Order”) to us via the App or other electronic means designated by us, specifying the following, if applicable: (a) the types and quantities of products, and (b) the product delivery location (“Delivery Location”). Some state regulations may require a business address for shipment to a Delivery Location, and, if applicable, you represent that the address you have provided is a business address. By submitting an Order in accordance with this Section, you make a binding offer to purchase products pursuant to the Agreement and on no other terms, including any purchase order terms. We have the right, in our sole discretion, to accept or reject any Order. We may accept an Order by displaying an order confirmation on the App or sending a confirmation email to the email address you provide. No Order is binding on us, and, regardless of your acceptance of such Order, we may cancel or rescind a previously accepted Order, without liability or penalty, and without constituting a waiver of any of our rights or remedies under this Agreement, by providing written notice to you specifying the applicable date of rejection, cancellation, or rescission, for any or no reason. If we cancel or rescind a previously accepted Order, we will refund any amounts paid by you associated with such Order, if any.
B.
Payment Information: If you wish to purchase any service or product made available by Tavour, you will be asked to supply certain information relevant to the purchase, including, without limitation, your credit card, debit card, or gift card information; billing address and shipping information (collectively, “Payment Method”). You represent and warrant that (a) all information that you provide in connection with a transaction with the Service is or will be accurate, complete, and current, and (b) you have the legal right and authority to use any Payment Method and/or coupon code utilized in connection with any transaction. By submitting such Payment Method, you grant to Tavour the right to provide your Payment Method to third parties, consistent with our Privacy Policy [https://www.tavour.com/privacy-policy] and such third parties’ privacy policies. If you have any questions regarding an applicable third party’s privacy policy, please contact support@tavour.com before purchasing a product or service. We may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in our sole discretion. You agree to pay all charges incurred by users of your Payment Method used in connection with a transaction with the Service at the prices in effect when such charges are incurred. We accept various payment methods through a payment processor, such as Stripe. By using our Service, you agree to be bound by the terms of our payment processors, as applicable. Agreements with our payment processors (i.e., Stripe, Square, Braintree) can be found on their respective websites.
C.
Gift Cards: You may purchase Tavour gift cards through the Service (“Tavour Gift Cards”). Tavour Gift Cards may be redeemed solely through our Service for our products or services. You may purchase Tavour Gift Cards for variable amounts made available on the Site or App. You may not purchase Tavour Gift Cards in amounts exceeding $5,000.00 in any single day. The amount of the Tavour Gift Card you purchase will be charged to you according to your selected Payment Method. Tavour Gift Cards may only be purchased and redeemed by persons residing in the United States, its territories, or military posts where Tavour is available. You do not need a User Account to purchase Tavour Gift Cards, but use of a Tavour Gift Card balance requires a User Account. The method of redemption of Tavour Gift Cards is subject to change in our sole discretion. If an order exceeds the amount of the Tavour Gift Card, the balance must be paid with a Payment Method. Tavour Gift Cards cannot be redeemed for other gift cards or cash except where required by law. Tavour Gift Cards cannot be transferred once redeemed. For balance information, or to replace the remaining value on a damaged card, contact: support@tavour.com or 1-800 217-5971. The Tavour Gift Card balance relayed to you is an estimate only. Tavour Gift Cards require no maintenance, activation, or other fees, and underlying funds do not expire. Risk of loss and title for Tavour Gift Cards pass to the purchaser upon electronic transmission to the purchaser or designated recipient, or our delivery to the carrier, whichever is applicable. Tavour is not responsible for lost or stolen Tavour Gift Cards, or for use without your or the recipient’s permission. Tavour reserves the right to close accounts or request alternative forms of payment if a Tavour Gift Card is fraudulently obtained or used.
D.
Promotions and Advertisements: The Service contains data, information, and other content not owned by you, such as promotional offers or credits to purchase products and services from us (“Tavour Property”). You understand and agree that regardless of terminology used, Tavour Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at our sole discretion. Tavour Property is not redeemable for any sum of money or monetary value from Tavour at any time, are non-transferrable, may only be used in connection with the Service. You acknowledge that you do not own the User Account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Tavour on Tavour’s servers, including without limitation any data representing or embodying any or all of your Tavour Property. You agree that Tavour has the absolute right to manage, regulate, control, modify and/or eliminate Tavour Property as it sees fit in its sole discretion, in any general or specific case, and that Tavour will have no liability to you based on its exercise of such right. All data on Tavour’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON TAVOUR’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN TAVOUR’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. TAVOUR DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON TAVOUR’S SERVERS.
E.
Shipping and Delivery Charges, Insurance, and Taxes: All product prices are exclusive of, and you are solely responsible for and shall pay, all shipping fees and taxes, with respect to or measured by the manufacture, sale, shipment, or price of the applicable products (including interest and penalties thereon); provided, however, that you shall not be responsible for any taxes imposed on, or with respect to, our income. Any shipments or deliveries of product that are refused or undeliverable by our third-party carriers will be returned to us at your expense.
F.
Packaging, Labeling, and Shipment: We will use commercially reasonable efforts to properly pack, mark, and ship or personally deliver (to the extent expressly agreed to by the parties in writing) products and, to the extent applicable, provide you with shipment documentation showing our name, our identification number for the subject products, and the quantity of pieces in shipment. We will select the method of shipment of and the carrier for products. We may, in our sole discretion, without liability or penalty, make partial shipments or deliveries of products to you. You represent and warrant that you are 21 years of age or older and agree to furnish a government-issued identification document to verify your age at the time you accept any products from us.
G.
Late Delivery: Any time quoted for delivery, including any estimated delivery date, is an estimate only; provided, however, that we will use commercially reasonable efforts to deliver all products on or before such quoted time, including any such estimated delivery date. No delay in the shipment or delivery of any product relieves you of your obligations under this Agreement, including accepting delivery of any remaining installment or other Orders of products.
H.
Transfer of Title and Risk of Loss: Unless otherwise expressly agreed by the parties in writing, all products are shipped, transported, and delivered to you by an independent carrier not affiliated with or controlled by us. Title to products and risk of loss passes to you upon our tender of such products to you at a Delivery Location set forth in an Order.
I.
Acceptance of Product: All Orders are final and non-refundable after seven (7) days from the date of our confirmation email. Except as provided under this Agreement, you have no right to return products purchased under this Agreement to us. You will be deemed to have accepted products unless you provide us with written notice of any nonconforming products (i.e., products that do not materially conform to the products described in the applicable Order). Such written notice will state with specificity all defects and nonconformities and furnish such other written evidence or other documentation as may be reasonably required by us. All defects and nonconformities that are not so specified will be deemed waived by you, such products will be deemed to have been accepted by you, and no attempted revocation of acceptance will be effective. Upon receipt of such written notice, we will determine, in our reasonable discretion, whether the products are nonconforming products. If you provide us with written notice of nonconforming products within three (3) days following the date of delivery of the products to the Delivery Location, and we determine that such products are nonconforming products, we will refund to you such amount paid by you to us for such nonconforming products. If you provide us with written notice of nonconforming products after three (3) days following the date of delivery of the products to the Delivery Location, and we determine that such products are nonconforming products, we will refund to you fifty percent (50%) of such amount paid by you to us for such nonconforming products. THE REMEDIES SET FORTH IN THIS SECTION ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING PRODUCTS.
J.
Regulation: Tavour makes no representation as to the right of any person to import any product in to any state. For each transaction, you represent that you may purchase and receive the products ordered in compliance with all applicable laws, including, without limitation, the alcoholic beverage control laws of the jurisdiction in which you reside, and that such products will be used only in a lawful manner. In all instances, any solicitation, invitation, offer, advertisement, or communication to purchase from Tavour is void where prohibited by law. You may be required to submit detailed reports of the products in your cellar to your residing state’s legal authorities using the forms they supply. You agree to be responsible to meet all such reporting requirements imposed by the alcoholic beverage control authorities in the jurisdiction you reside.
K.
California Residents: If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA, 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
VI.
Subscriptions
A.
Subscription Service: The Service may include automatic recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you will provide us your Payment Method and authorize us to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account (“Subscription Fee”), all accrued sums on or before the payment due date (“Subscription Billing Date”) for your next product shipment (“Subscription Shipment”). The Subscription Fee and any other charges you may incur in connection with your use of the Subscription Service, such as taxes, will be charged to your Payment Method on the Subscription Billing Date indicated on the “Subscribe” page of the App. The length of your billing cycle and consequently your Subscription Billing Date will depend on the subscription frequency you choose when you activate the Subscription Service. In some cases, your Subscription Billing Date may change, for example, if your Payment Method is not successfully charged upon the first attempt. You can view your next two upcoming payment dates on the “Subscribe” page of the App. If payment is not successfully made due to expiration of your Payment Method, insufficient funds, or otherwise, and you do not cancel your User Account, we will withhold from shipping products to you until we have successfully charged a valid Payment Method. You may view, edit, and delete your Payment Methods on the “Payments & Credits” page of the App. We reserve the right to change the Subscription Service or adjust corresponding pricing in any manner and at any time as we may determine in our sole discretion following notice to you.
B.
Skip: You may put your Subscription Service on hold for one (1) or more product shipments (each, a “Skip”). During a Skip, you will have access to any special deals we provide Users, but you will not receive product shipments, access Subscription benefits such as free shipping, or owe Subscription Fees. We will provide notice before your Subscription Service reactivates in advance of your subscription’s next scheduled product shipment.
C.
Cancellation: The subscription will continue unless and until you cancel or we terminate it at our discretion for any reason, including in the event of invalid Payment Method. You must cancel your subscription at least three (3) days before your next Subscription Billing Date in order to avoid billing of the next periodic Subscription Fee to your account. You may notify us that you wish to cancel the Subscription Service by contacting us on the App, emailing support@tavour.com, or calling our customer support telephone line as listed on our Service. Once you have notified us that you wish to cancel, we will not charge further Subscription Fees, and your Subscription Service will cease on your next Subscription Billing Date. Following such cancellation, any subscription orders already charged will still be shipped to you, and all subsequent scheduled product shipments will be automatically canceled.
D.
Delinquent Accounts: We may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees.
VII.
DMCA Notice
A.
Since we respect artist and content owner rights, it is Tavour’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
B.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on the Service, please notify Tavour’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide Tavour with the following information in writing:
a.
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
b.
Identification of the copyrighted work that you claim has been infringed;
c.
Identification of the material that is claimed to be infringing and where it is located on the Service;
d.
Information reasonably sufficient to permit Tavour to contact you, such as your address, telephone number, and email address;
e.
A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
f.
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner. The above information must be submitted to the following DMCA agent:
Attn: DMCA Notice
Tavour Inc.
1904 3rd Avenue Suite 725
Seattle, WA 98101
United States of America
(206) 486-0669
copyright@tavour.com
C.
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
D.
Please note that this procedure is exclusively for notifying Tavour and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Tavour’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
E.
In accordance with the DMCA and other applicable law, Tavour has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Tavour may also, at its sole discretion, limit access to the Service and/or terminate the User Accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
VIII.
Disclaimer of Warranties
A.
THE SERVICE AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TAVOUR OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, TAVOUR, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE, OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
B.
FURTHER, TAVOUR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND TAVOUR WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
C.
FEDERAL LAW, SOME STATES, PROVINCES, AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
D.
Any and all pricing, delivery, or contract information is subject to final confirmation by Tavour. Your reliance on such information provided solely through the service is at your own risk.
IX.
Limitation of Liability
A.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TAVOUR, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL TAVOUR BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
B.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAVOUR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL TAVOUR, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO TAVOUR HEREUNDER OR $100.00, WHICHEVER IS GREATER.
C.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TAVOUR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
D.
Indemnification: You agree to defend, indemnify, and hold harmless Tavour and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs, or debt, and expenses (including, without limitation, attorneys’ fees) arising from: (a) your use of and access to the Service, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including, without limitation, your breach of any of the representations and warranties above; (c) your violation of any third-party right, including, without limitation, any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule, or regulation; (e) any content that is submitted via your User Account including, without limitation, misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Service with your unique username, password, or other appropriate security code.
X.
Choice of Law and Forum
A.
You agree that: (a) the Service shall be deemed solely based in California; and (b) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
XI.
Intellectual Property
A.
User Content: Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, images, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
B.
WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS. However, you understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your User Content. By providing or sharing User Content through the Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. Tavour has the right (but not the obligation) in its sole discretion to monitor or remove any User Content that is shared via the Service.
C.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Tavour a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Service and Tavour’s (and its successors’ and affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display, and perform such User Content as permitted through the functionality of the Service and under this Agreement.
D.
For purpose of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other Intellectual Property Rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
E.
In connection with your User Content, you affirm, represent, and warrant the following:
a.
You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
b.
You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
c.
Your User Content and Tavour’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including, without limitation, any Intellectual Property Rights and privacy rights.
d.
Tavour may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
e.
To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
F.
Tavour takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing, sharing, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Tavour shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
G.
Our Proprietary Rights: Except for User Content, you acknowledge and agree that all information to which you have access via the Service, trademarks, service marks, the Service, all materials therein or transferred thereby, and all Intellectual Property Rights related thereto (collectively, the “Information”) are the exclusive property of Tavour and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any Information. Use of the Information for any purpose not expressly permitted by this Agreement is strictly prohibited. You may choose to or we may invite you to submit comments or ideas about the Service, including, without limitation, about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Tavour under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Tavour does not waive any rights to use similar or related ideas previously known to Tavour, or developed by its employees, or obtained from sources other than you.
H.
Third-Party Materials: When you use the Service, you may purchase a service or product that is provided by another person or company, and the Service may contain software or links to third-party materials that are not owned or controlled by Tavour. Your use of these other services and products may be subject to separate terms between you and the company concerned. If so, the Terms of Use do not affect your legal relationship with these other companies or individuals. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share content on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and our Privacy Policy do not apply to your use of such sites. You expressly relieve us from any and all liability arising from your use of any third-party website, service, product, or content, including, without limitation, content submitted by other Users.
XII.
Additional Terms for App
A.
We may make available software to access the Service via a mobile device. To use any App you must have a mobile device that is compatible with the App. Tavour does not warrant that the App will be compatible with your mobile device. You may use mobile data in connection with the App and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Tavour hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the App for one Tavour User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (a) modify, disassemble, decompile, or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (c) make any copies of the App; (d) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (e) delete the copyright and other proprietary rights notices on the App. You acknowledge that Tavour may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the App is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the App or any copy thereof, and Tavour or its third-party partners or suppliers retain all right, title, and interest in the App (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. Tavour reserves all rights not expressly granted under this Agreement. If the App is being acquired on behalf of the United States Government, then the following provision applies. The App will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The App originates in the United States, and is subject to United States export laws and regulations. The App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the App and the Service.
B.
App from Apple App Store: The following applies to any App you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Tavour, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Tavour as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, without limitation: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Tavour as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s Intellectual Property Rights, Tavour, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Tavour acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
C.
App from Google Play Store: The following applies to any App you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that the Agreement is between you and Tavour only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) Tavour, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (f) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Tavour’s Google-Sourced Software.]
XIII.
Miscellaneous
A.
Assignment: This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Tavour without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B.
Entire Agreement/Severability: This Agreement, together with any amendments and any additional agreements you may enter into with Tavour in connection with the Service, shall constitute the entire agreement between you and Tavour concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
C.
No Waiver: No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Tavour’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
D.
Locations: We control and operate the Service from our offices in Seattle, WA. We do not represent that the Service is appropriate or available in other locations. Those who access the Service from other locations do so on their own initiative and are responsible for compliance with all applicable laws, including, without limitation, import and export regulations.
E.
Export: Software available in connection with the Service is further subject to United States export controls. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States. No software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws.
F.
Arbitration: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM TAVOUR. For any dispute with Tavour, you agree to first contact us at support@tavour.com and attempt to resolve the dispute with us informally. In the unlikely event that Tavour has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Tavour agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (a) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for experts and other witnesses; and (c) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Tavour from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights, or other proprietary rights.
G.
Class Action/Jury Trial Waiver: WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TAVOUR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
H.
Contact: Please contact us at support@tavour.com with any questions regarding this Agreement.